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How they ultimately sort them out could affect sentencing disparities across the country,
lawyers for defendants in both cases argued.

Part of the
Hughes case deals with how to resolve Supreme Court decisions with different factions of
the court reaching the same result through different reasoning, with the question
being which opinion of the high court binds the lower courts.

Both
Hughes and
Koons stem, in part, from the court’s 2011 decision in
Freeman v. United States. There, the court addressed when a defendant who pleads guilty under an agreement
with the government can take advantage of later reductions in the federal U.S. Sentencing
Guidelines.

But the court split into three camps in
Freeman, with four justices ruling one way, four another, and the ninth—Sonia Sotomayor—writing
her own opinion.

Sotomayor reached the same result as the first four justices, thus totaling five in
Freeman who said the defendant in that case could reduce his sentence. He was sentenced under
a plea agreement, and then sought a reduction after sentencing guidelines were lowered.

The question was whether his sentence was “based on” the guidelines. Sotomayor agreed
it was, but based on reasoning that all other eight justices rejected.

Courts have applied an older Supreme Court case,
Marks v. United States, to say her opinion controls. Erik Hughes argued he has suffered under that interpretation.

Under
Marks, the decision reached on the “narrowest grounds” controls, and courts have applied
Marks to say Sotomayor’s opinion from
Freeman constitutes the narrowest grounds.

Some justices agreed
Marks poses problems, but some also raised concern about abandoning
Marks, which was decided in 1977 and has been relied on by courts since then.

The justice went on to give an example, apparently modeled off the 4-1-4 breakdown
in
Freeman, that could be characterized as amusing, even if not an airtight exercise in mathematics.

“Let’s say that nine people are deciding which movie to go and see,” Alito began.
“And four of them want to see a romantic comedy, and two of them want to see a romantic
comedy in French, and four of them want to see a mystery.”

“Now is the—are the two who want to see the romantic comedy in French, is that a logical
subset of those who want to see a romantic comedy?” he asked Shumsky.

Justice Stephen G. Breyer couldn’t help himself from taking the hypo a step further.

“But you see, if you have, of course, a real French comedy, fine. But suppose you
have—to show off—
Mr. Hulot’s Holiday, you know, it’s a comedy, but is it romantic, you see,” Breyer said, referring to
a 1953
film.

Breyer’s elaboration prompted laughter from the courtroom, and a smile from Alito.

Second Best, Chaos

Staying focused, Justice Elena Kagan cautioned against letting the perfect be the
enemy of the good.

“I mean, the question is, what is the second best?” she said. “We’re in a world in
which the first-best option, which is five people agreeing on the reasoning, that
doesn’t exist.”

Kagan suggested Shumsky’s position could cause chaos.

“Our position is not that there should be chaos,” Shumsky clarified.

But “if the Venn diagrams overlap, if the Russian dolls don’t fit, then, under those
circumstances, it’s not a logical subset” that leads to a controlling opinion, he
said.

Let it Stand

Rachel P. Kovner, assistant to the U.S. solicitor general, argued for keeping the
status quo.

Hughes’s approach is “flatly contrary to what this Court said in
Marks,” she said.

It also “undercuts the principle of vertical stare decisis that generally requires
lower courts to decide cases in the way that this Court would decide them,” she said.
Kovner employed the latin term used to argue in favor of precedent, literally meaning
“let the decision stand.”

But Kagan had questions for Kovner, too.

“There are some cases where there are middle ground positions which seem utterly incoherent
to anybody else” and “the middle ground is the worst of all possible worlds,” Kagan
said.

“So how do you deal with those sorts of cases?” she asked.

Kovner pointed to the
Freeman case itself as an example of why an arguably strange middle position shouldn’t lead
to discarding the
Marks rule.

The five justices who ruled that the defendant in that case could reduce his sentence
knew they were voting for the same result, even if it was based on different reasoning,
she said.

Cooperators, Disparities

In the second argument,
Koons, defendants who cooperated with the government sought the benefit of reductions in
sentencing guidelines.

It’s unclear whether they’ll prevail.

“Isn’t it an anomaly in the position you take, that is, if the defendants involved
here, if they were to appear for initial sentencing today, they would get the very
same sentence that they got—that the—the sentence that they are now serving?” Justice
Ruth Bader Ginsburg asked their lawyer,
Jeffrey L. Fisher of the Stanford Supreme Court Litigation Clinic.

“So that seems a little odd that people who, if they were being sentenced today, would
get the exact same sentence, should get the benefit of this scale-down,” Ginsburg
said.

Fisher replied that would be odd if it were true. But it’s not. The government’s argument
on that score rests on a “false premise,” he said.

He went on to say it would be “perverse” if cooperators couldn’t get relief based
on later guidelines reductions.

Allowing them to reduce their sentences “avoids sentencing disparities because we’re
asking for our sentences to be adjusted just as somebody would be sentenced today,”
he said.

But Eric J. Feigin, assistant to the U.S. solicitor general, sought to flip the script
on Fisher’s argument.

Feigin argued the defendants were looking for a “windfall” and that they were the
ones actually creating a sentencing disparity, not the government.

The defendants are asking for relief they wouldn’t be able to get if they were being
sentenced today, Feigin said.

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